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noting that Daubert was not "a steadfast rule that must be applied in every case" and the court would look to see if the government's handwriting expert's method was "reliable in nature and in application to the facts."
Summary of this case from U.S. v. BrewerOpinion
CRIMINAL ACTION NO. 00-321 SECTION "N"
September 21, 2001
ORDER AND REASONS
Before the Court are the following motions by Defendant, Kenneth Richmond which are resolved as follows:
(1) Motion to Exclude 404(b) Evidence of Prior Convictions is DENIED;
(2) Motion to Exclude 404(b) Evidence Relating to an Alleged Murder for Hire Scheme is GRANTED;
(3) Motion to Exclude the Government's Handwriting Experts is DENIED;
(4) Motion to Retain Rough Notes of Government Officials is GRANTED; and
(5) Defendant's Motion in Limine to Preclude the Introduction of Co-Conspirators' Hearsay Statements is DENIED.
A. BACKGROUND
This case involves an alleged conspiracy and scheme to defraud by hiring postal employees to steal mail from the United States Post Office in New Orleans including U.S. Treasury checks, personalized checks mailed by banks to their customers, and credit card bills and payments.B. ANALYSIS 1. Rule 404(b) evidence
Kenneth Richmond seeks to have excluded from evidence two prior convictions and an alleged murder for hire scheme as highly prejudicial. First, Richmond asserts that the two prior convictions are extrinsic evidence and fail the two part Beechum test of admissibility. The Court disagrees. While Rule 404(b) precludes the admissibility of evidence of other crimes to prove character to show acts in conformity with such character, the Rule clearly allows prior convictions to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). In United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978), cert denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), the Fifth Circuit established a two part test for the admissibility of 404(b) evidence. In order to be admissible, the evidence must (1) be relevant to an issue other than the defendant's character, and (2) possess probative value that is not substantially outweighed by its undue prejudice and meet the requirements of Rule 403.
First, Richmond contends that the introduction of the prior convictions has no purpose but to characterize him as "perpetrator of fraudulent activities" and a "career con-man." The Government asserts that it seeks to introduce the prior convictions to show knowledge and intent. The two prior convictions involved possession and transfer of false identification documents and possession of forged securities. Richmond argues that the forged securities conviction is not similar to the instant case. This case could not be more similar to the circumstances surrounding Richmond's two prior convictions. Both involve the use and possession of false Louisiana drivers licenses which were made by Richmond. This case involves forged checks which, while not identical to forged securities, are similar. The Government intends to use the evidence of Richmond's repetitive conduct to establish knowledge, intent, plan and the lack of any accident or mistake relating to the alleged conspiracy and scheme to defraud. Accordingly, Defendant's motion to exclude evidence of his two prior convictions is DENIED.
Defendants Rule 404(b) Motion, p. 5.
Second, Richmond seeks to exclude evidence of an alleged murder for hire scheme. As this evidence is wholly unrelated to the present case, it is excluded as highly prejudicial under Rule 403. Accordingly, the motion to exclude evidence of the murder for hire scheme is GRANTED.
Finally, Richmond requested that the Court exclude from evidence the introduction of a document entitled "Offer to Purchase Real Estate." The Government contends that the real estate was purchased using illicit funds gained from activities of the conspiracy and is intrinsic evidence of Richmond's participation in the conspiracy and scheme to defraud. Evidence of prior acts is intrinsic to the charged conspiracy if the prior acts are "inextricably intertwined" with the acts underlying the charged offense. United States v. Taylor, 210 F.3d 311, 317 (5th Cir. 2000), quoting, United States v. Powers, 168 F.3d 741, 749 (5th Cir. 1999). "Such evidence is admissible `to complete the story of the crime by proving the immediate context of events in time and place.'" Id. quoting, United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996). The purchase of real estate by using illicit funds involving a forged document is not "inextricably intertwined" with this conspiracy. Purchasing real estate is not alleged in the conspiracy. Accordingly, Defendant's motion to exclude the real estate document is GRANTED.
2. Handwriting Experts
Richmond requests that the Court exclude the testimony of the Government's handwriting expert under Fed.R.Evid. 702. Richmond also questions the scientific reliability of handwriting analysis and argues that it cannot meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Supreme Court, interpreting Rule 702, made trial courts the "gate keepers" for the admissibility of experts and instructed them to determine, as a pre-condition to the admissibility of expert testimony, whether the expert will testify to scientific knowledge that will assist the trier of fact to understand or determine a fact at issue. Id. at 592, 113 S.Ct. 2786. The Court laid out several factors for courts to use in making this assessment including whether the methodology used has been tested, subjected to peer review and publication, the rate of error of the methodology used, and whether the methodology has been generally accepted in the relevant community. Id. at 593-4, 113 S.Ct. 2786. In Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court clarified that the gate keeping function of the courts extended to experts who were not scientists. The Court emphasized that the test was "flexible" and courts have "the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 1171. It is the function of the district court to keep out, not only unreliable scientific evidence, but unreliable nonscientific evidence.
Handwriting analysis has, historically, been widely used and accepted by courts throughout the country. Experts in this field use methods that are recognized in their particular field of expertise. Courts have consistently allowed such experts to testify in aiding the jury in making its determinations. See United States v. Jones, 107 F.3d 1147 (6th Cir. 1997); United States v. Paul, 175 F.3d 906, 910-11 (11th Cir. 1999). The Fifth Circuit, while allowing such evidence to be used, has not been faced with a challenge of the reliability of such evidence. See United States v. Morrow, 177 F.3d 272, 288 (5th Cir. 1999). Recently, however, in light of Kuhmo, courts have been refusing to allow handwriting experts to testify for not meeting the requirements of Daubert or Kuhmo or at least limiting the scope of the experts' testimony. See United States v. Hines, 55 F. Supp.2d 62 (D.Mass. 1999) (holding there is no need for expert testimony on handwriting analysis. Lay people can do just as well); United States v. Fujii, 152 F. Supp.2d 939 (N.D.Ill. 2000) (noting that such analysis does not hold up well under Daubert. Few studies support its reliability and those have been criticized.) Some courts have compromised by limiting the scope of such testimony to comparing the characteristics of signatures, noting similarities and dissimilarities, and precluding experts from making definitive conclusions as to the identity of the author. See Hines, 55 F. Supp.2d at 67-8.
The district court is obligated to determine that expert testimony has a proper basis and is well reasoned. In Kuhmo, the Court held that in some cases, "the relevant reliability may focus on personal knowledge or experience." 526 U.S. at 150, 119 S.Ct. at 1175. The Court noted that "there are many different kinds of experts, and many different kinds of expertise." Id. As an example, the Court cited handwriting analysis.Daubert is not a steadfast rule that must be applied in every case. A great deal depends on the circumstances of the case at issue. Id. While certain courts have recently rejected the testimony of certain handwriting experts, this Court refuses to hold that such testimony is prohibited under Fed.R.Evid. 702. As a gatekeeper, the Court will look to see if the experts methods are reliable in nature and application to the facts. In addition, the Court notes that cross-examination will help reveal whether the principles and methods used by the experts as applied to the facts are reliable. Accordingly, Defendant's motion is DENIED.
3. Rough Notes and Brady Information
During the pre-trial conference, the Court ordered the Government to produce any Brady and Jencks material it had in its possession. Richmond has also requested that the Government preserve any rough notes in its possession. Richmond has not requested that the Government produce such materials. To the extent that Richmond requests that this Court order the government to preserve such materials, and since the Government does not object, IT IS SO ORDERED.
4. Co-Conspirator Hearsay
Richmond requests that the Court order any out of court statements made by coconspirators inadmissible, unless the Government sustains its burden of proof that the hearsay exception under Rule 801(d)(2)(E) applies. Federal Rule of Evidence 801(d)(2)(E) provides that "a statement by a co-conspirator or a party during the course and in furtherance of the conspiracy" is not hearsay if it is offered against that party. To satisfy the co-conspirator statement exclusion, the government must prove by a preponderance of the evidence (1) that a conspiracy existed; (2) that the declarant and the defendant were members of the conspiracy; and (3) that the statement was made during the course of and in furtherance of the conspiracy. See Bourjaily v. United States, 483 U.S. at 175, 107 S.Ct. at 2778; United States v. Green, 180 F.3d 216, 222 (5th Cir.), cert. denied, 120 S.Ct. 599 (1999) In determining whether a conspiracy existed, the Court may examine the offered statement itself. Id. at 181, 107 S.Ct. at 2781.
The Fifth Circuit has approved the practice of withholding ruling on these preliminary facts until the trial has concluded. United States v. West, 58 F.3d 133, 142 (5th Cir. 1995). The method for proceeding is left to the trial court's discretion. Fragoso v. United States, 978 F.2d 896, 900. A separate hearing outside the presence of the jury is not required. United States v. Gonzalez, 700 F.2d 196, 203 (5th Cir. 1983), quoting United States v. Whitley, 670 F.2d 617 (5th Cir. 1982). "Where no separate hearing is held, but, at the end of the trial, the trial judge finds . . . that a preponderance of the evidence proves the predicate facts, no error has occurred in the admission of the coconspirator statements." Whitley, 670 F.2d 617, 620 (5th Cir. 1982), citing United States v. Ricks, 639 F.2d 1305 (5th Cir. 1981).
It should also be noted that this Court is aware of the facts surrounding the alleged conspiracy. Several of the co-conspirators have pled guilty to the conspiracy. This Court has also heard testimony from one of the co-conspirators during the hearing to revoke Kenneth Richmond's supervised release. The Court will weigh the testimony adduced at trial and make a determination as to whether there is sufficient evidence to support the existence of a conspiracy. Accordingly, Defendant's Motion is DENIED.
For the reasons set forth above, IT IS ORDERED that
(1) Defendant's Motion to Exclude 404(b) Evidence of Prior Convictions is DENIED;
(2) Defendant's Motion to Exclude 404(b) Evidence Relating to an Alleged Murder for Hire Scheme is GRANTED;
(3) Defendant's Motion to Exclude the Government's Handwriting Experts is DENIED;
(4) Defendant's Motion to Retain Rough Notes of Government Officials is GRANTED; and
(5) Defendant's Motion in Limine to Preclude the Introduction of Co-Conspirators' Hearsay Statements is DENIED.